Agustin Cornejo Magana v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT AGUSTIN CORNEJO MAGANA, No. 19-72689 Petitioner, Agency No. A200-974-420 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 11, 2023** Pasadena, California Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges. Petitioner Agustin Cornejo Magana is a native and citizen of Mexico who seeks review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from the order of an Immigration Judge (“IJ”) denying him cancellation of removal under 8 U.S.C. § 1229b(b)(1). We have jurisdiction pursuant to 8 U.S.C. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). § 1252, and we deny the petition. In 2011, Petitioner was convicted in California state court of misdemeanor forgery. He faced a maximum jail sentence of one year. Cal. Penal Code. § 473 (2011). Both the IJ and BIA found the crime to be one involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A). This finding disqualified Petitioner from cancellation because the law only permits cancellation for applicants who have “not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title.” 8 U.S.C. § 1229b(b)(1). Sections 1182(a)(2) and 1227(a)(2) are similar—both discuss crimes involving moral turpitude—but they are not identical. Section 1182(a)(2)(A) states that noncitizens who have been convicted of a crime involving moral turpitude are inadmissible, but the section contains a “petty offense exception” that exempts one misdemeanor from the moral turpitude bar, subject to certain conditions.1 See 8 1 The exception states that section 1182(a)(2)(A)(i)(I) “shall not apply to an alien who committed only one crime if-- ... (II) the maximum penalty possible for the crime of which the alien was convicted . . . did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed). 8 U.S.C. § 1182(a)(2)(A)(ii) (emphasis added). 2 U.S.C. § 1182(a)(2)(A). Section 1227(a)(2) states that a noncitizen who “is convicted of a crime involving moral turpitude committed within five years” of the date of his admission and “is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(i).2 Petitioner does not appeal the determination that his forgery conviction was a crime involving moral turpitude. And a “crime involving moral turpitude” under section 1182(a)(2)(A) is also “a crime involving moral turpitude” under 8 U.S.C. § 1227(a)(2)(A)(i). See Mancilla-Delafuente v. Lynch, 804 F.3d 1262, 1265 (9th Cir. 2015). Both sections are independent barriers to cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(C) …

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